Bishan
Singh & Anr Vs. The State [2007] Insc 1015 (9 October 2007)

S.B.
Sinha & Harjit Singh Bedi

[Arising
out of S.L.P. (Crl.) No. 2273 of 2007] S.B. SINHA, J:

1.
Leave granted.

2. Bishan
Singh son of Bachchi Singh and Govind Ballabh son of Krishnanand, the two
surviving accused, who were tried and convicted for commission of an offence
under Sections 147 and 308/149 of the Indian Penal Code (IPC) are before us;
the other four accused, namely, Arjun Singh, Shivraj, Govind Singh and Bhairav Dutt
having expired.

3. One
Harish Bhatt was the complainant. On 30.09.1984 at about 06.30 p.m. when he was going towards his village, the accused
persons allegedly assaulted him with lathis and took out a sum of Rs.400/- from
his pocket.

His
brother Ghanshyam Dutt Bhatt intervened. It was alleged that the accused
persons were inimically disposed of towards the injured and had attacked him
with an intention to cause his death. The injuries suffered by Harish Bhatt as
per the injury report prepared by Dr. J.S. Pangti (PW-6) are as under :

8.
Complain of pain in both lower legs and thigh, but no injury seen. 4.
Admittedly, all the injuries except injury no.7 were simple ones.

Injury
No. 7 being a fracture with dislocation of wrist joint was found to be grievous
one. The injured witness examined himself as PW-5. In his deposition, he alleged
:

I
used to stop the accused from fighting with the poor people and I was witness
against the accused persons in the litigation between Shanti Joshi and accused
persons.

That
is why the accused beat me. My head was wounded. My kurta was full of blood and
seizure report of kurta had been made in the hospital

5. The
learned Trial Judge relying on or on the basis of the testimonies of the said
witness as also his brother, convicted the appellants for commission of an
offence under Sections 147 and 308/149 IPC and sentenced them to undergo
rigorous imprisonment for one year for the offence punishable under Section 147
IPC and rigorous imprisonment for four years for the offence punishable under
Section 308/149 IPC.

6.
Although in the First Information Report, the informant had alleged that all
the six accused had earlier threatened to kill him as also burn his hut and the
said attack was with an intention to kill him, but the offence recorded therein
was under Sections 147 and 323 IPC. The charge-sheet was, however, submitted,
inter alia, under Section 308 IPC.

7. We
have noticed hereinbefore that in his deposition PW-5 stated about the existing
enmity between the parties. It does not appear from his deposition that he had
made any statement to the effect that the accused had attacked him with an
intention to kill. The learned Trial Judge in his judgment solely relying upon
the allegations made in the First Information Report opined that a case under
Section 308 IPC was made out.

8.
Interestingly, the learned Trial Judge observed that the charge under Section
308 IPC read with Section 149 thereof was proved, because the eye- witnesses
had clearly sated that they were armed with lathis.

9. The
learned Trial Judge did not notice the ingredients of Section 308 IPC which
provides for existence of an intention or knowledge.

10.
The High Court also dismissed the appeal, opining :

33.
From perusal of record it has been established that the intention of the
accused persons was to commit culpable homicide. They had enmity with the
injured Harish Bhatt. Threats were also given to him by the accused persons to
ruin his life. PW-4, Ghanshyam Dutt has clearly stated that when he reached at
the spot he saw that the accused persons were beating the injured recklessly
with Lathis-Dantas. Injuries were also caused on scalp. Looking to the seat of
injuries and the fact and circumstances of the case the prosecution has been
able to prove the offence u/s 308/149 IPC against the accused persons. The
finding of the trial court is just and proper and need no inference by the
appellate court.

11.
Before an accused can be held to be guilty under Section 308 IPC, it was
necessary to arrive at a finding that the ingredients thereof, namely,
requisite intention or knowledge was existing. There cannot be any doubt
whatsoever that such an intention or knowledge on the part of the accused to
cause culpable homicide is required to be proved. Six persons allegedly
accosted the injured. They had previous enmity. Although overt-act had been
attributed against each of the accused who were having lahtis, only seven injuries
had been caused and out of them only one of them was grievous, being a fracture
on the arm, which was not the vital part of the body.

12.
The accused, therefore, in our opinion, could not be said to have committed any
offence under Section 308 IPC. The same would fall under Sections 323 and 325
thereof.

13.
The question now is what punishment should be awarded.

14.
While imposing punishment in a case of this nature, the court is required to
take into consideration the factors which may weigh with the court for taking a
lenient view in the matter. The incident is of 1984. 23 years have elapsed.
Appellants had all along remained on bail. It is not stated that they had ever
misused the privilege of bail. The incident does not reflect any cruelty on their
part or any mental depravity. They had been in custody for more than five
months. In a situation of this nature, we are of the opinion that it may not be
proper for this Court to send the accused persons back to prison. However, the
injured had suffered pains at the hands of the appellants. We are, therefore,
of the opinion that while their substantive sentence may be reduced to the
period undergone, they should pay a fine of Rs. 15,000/- (Rupees fifteen
thousand) each; failing which they should undergo simple imprisonment for a
period of one year each. If the aforementioned amount is realized, a sum of Rs.
25,000/- (Rupees twenty five thousand) out of the sum, may be paid to the
informant.

15.
Appellants who are in custody shall be released forthwith, if not required in
connection with any other case, subject to the aforementioned conditions.